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SB 1437 - Jury’s Pre-Banks / Clark Findings Reliable?

In 1994, David Shawn Smith was convicted of first-degree murder (Penal Code § 187(a)) under a felony murder theory of liability in the downtown Los Angeles Clara Shortridge Foltz (CCB) courthouse.  Mr. Smith had two co-defendants, Anthony D. Jefferson and Reginald Ray York, who also took part in the underlying felony and killing.
The Gist of this Article: If a petitioner seeking recall of his sentence and resentencing under Penal Code § 1170.95 (SB 1437) asserts a prima facie case for relief, the judge must appoint counsel to represent petitioner and set an order to show cause hearing why relief should not be given.  In reading this case, it is wise to consider other recent opinions from other courts that hold a judge may look into the lower court record before appointing counsel.
In the underlying case, in 1991, Otis Ervin robbed an armored car of $500,000.  Six weeks later, Smith, Jefferson and York went to Ervin’s apartment to rob him, but the robbery “spiraled into a major crime spree which included rape in concert, rape by a foreign object in concert, burglaries, residential robberies, kidnapping and murder.”

The jury found true the special circumstance that Smith committed murder during the commission of a robbery pursuant to Penal Code § 190.2(a)(17).  Smith was also convicted of two counts of kidnapping (Penal Code § 209), two counts of burglary (Penal Code § 459), one count of residential robbery (Penal Code § 211) and three counts of rape (Penal Code §§ 261(a)(2), 264.1 and 289).  He was sentenced to life in state prison without the possibility of parole, plus sixteen years.

On January 1, 2019, Senate Bill 1437 became effective and, in amending the felony-murder rule (Penal Code § 190.2), allows vacatur under Penal Code § 1170.95 of a felony-murder conviction if defendant: (1) was not the actual killer; (2) did not act with the intent to kill; and (3) was not a major participant and did not act with reckless indifference to human life.

Mr. Smith filed a petition for resentencing under Penal Code § 1170.95 and SB 1437.  In his petition, he declared that he was not the actual killer, he did not act with the intent to kill and was not a major participant who acted with reckless indifference to human life.  This is exactly what must be alleged to establish a prima facie case for relief and to thereafter have the trial court judge appoint counsel and order a hearing with an order to show cause why relief should not be granted. 

Second Appellate District Court of Appeal CA Los AngelesSecond Appellate District Court of Appeal CA Los Angeles

However, the trial court judge, Robert Perry, summarily denied the petition on the merits and on the basis that SB 1437 unconstitutionally amends Penal Code 190.2.

Mr. Smith then appealed this summary denial to the Second Appellate District in downtown Los Angeles.

In response to Mr. Smith’s appeal, the People agreed that SB 1437 does not unconstitutionally amend 190.2, but agued that the petition should still be denied because the jury (in 1994) found true the special circumstance allegation that the murder was committed during the commission of a robbery.  To sustain this finding, the jury was required to find that Smith acted with “reckless indifference to human life,” which it did find.

The Second Appellate District Court distilled down the appeal to whether the trial court erred by denying his petition as a matter of law without appointing counsel.  It determined the trial court erred in this regard.

In responding to the People’s argument, the appellate court acknowledged that their argument has a “facial appeal.”  After all, the jury literally found that Smith was a “major participant” and acted with “reckless indifference to human life,” which is the identical language that Penal Code § 189 uses.

However, this finding was in 1994, prior to the issuance of the California Supreme Court’s rulings in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, which construed the “major participant” and “reckless indifference to human life” “in a significantly different, and narrower manner than courts had previously.”  People v. Torres (2020) 46 Cal.App.5th 1168, at 1179.  In other words, the factual issues that the jury was asked to resolve in 1994 are not the same factual issues our Supreme Court has since identified as controlling.

As held in Torres, supra, courts may not “defer to the jury’s pre-Banks and Clark factual findings that [the petitioner] was a major participant who acted with reckless indifference to human life as those terms were interpreted at that time” when determining petitioner’s eligibility for resentencing as a matter of law, in light of the considerations identified in those two opinions.  Torres, at 1179.

Therefore, the order denying Smith’s petition was reversed and the matter was remanded for the trial court to appoint counsel and conduct further proceedings in accordance with Penal Code § 1170.95. 

We present this short summary to highlight what we believe may be happening in other SB 1437 petitions state-wide, but prisoners serving time do not know about Banks and Clark and therefore, such prisoners do nothing after the trial court defers to the jury findings on major participation and reckless indifference.  This injustice and ignorance cannot continue because people remain in prison when the law provides for their possible release.

The citation for the Second Appellate District Court ruling discussed above is People v. David Shawn Smith (2d App. Dist., 2020) 49 Cal. App. 5th 85, 262 Cal. Rptr. 3d 687.

For more information about the Banks and Clark cases in the context of felony murder, SB 1437 petitions and being a major participant and acting with reckless indifference in a felony murder, please click on the following articles:

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